The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

4.2.1.20 Parent with increased care - taking reasonable action to participate in family dispute resolution

Context

The person with increased care must take continuous reasonable action to participate in family dispute resolution in order for a shorter interim period to apply, and to avoid a later interim period applying.

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Reasonable action to participate in family dispute resolution

Reasonable action means participating in family dispute resolution, whether or not initiated by the person with increased care, with an accredited family dispute resolution practitioner within a reasonable period of the change of care day (CSA Act subsection 53A(3)). If the action did not occur within a reasonable period of the change of care day, the Registrar may determine that reasonable action started on a later date.

It is up to the Registrar to determine what is considered a 'reasonable period' in which the reasonable action started, and it will depend on the individual circumstances of each case. If the person with increased care does not take reasonable action within a reasonable period, the end of the interim period will be the end of 14 weeks starting on the day the person began taking reasonable action, rather than the change of care day.

Example: Joan and Kim have a court order made on 2 May 2015 providing them with 50% care each of their son, Fred. On 30 July 2024, Joan advises Services Australia that Fred has decided to live with her full time. When Services Australia contacts Kim, she advises that she disputes the care change and is negotiating directly with Joan to resume the court-ordered care. Kim also advises that Joan has been refusing her requests to attend family dispute resolution to resolve the issue, which Services Australia confirms with Joan. Services Australia makes a decision to apply an interim period from 30 July 2024. Because Joan is not taking reasonable action to attend family dispute resolution, the interim period will end on 27 January 2025 (26 weeks from the change of care day).

On 14 September 2024, Joan contacts Services Australia to advise that she decided to attend a family dispute resolution session arranged by Kim on the same day. Because Joan has started taking reasonable action to participate in family dispute resolution, the interim period will end earlier, on 20 December 2024 (14 weeks starting on the day Joan began to take reasonable action).

If the reasonable action ceases within the maximum interim period (for example, the person with increased care fails to attend a family dispute resolution session), then it is not considered continuous reasonable action. The effect of ceasing reasonable action to participate in family dispute resolution will depend on when the reasonable action ceased. If the reasonable action ceased while a shorter interim period applied, the interim period will be extended to the maximum interim period. If the reasonable action ceased after a shorter interim period has ended but before the end of the maximum interim period, a later interim period will apply.

If the person with increased care starts to take reasonable action to participate in family dispute resolution again (for example, they failed to attend an earlier session, but do attend a subsequent session), then the interim period may end earlier, subject to the rules outlined above.

Act reference: CSA Act section 53A Meaning of interim period, section 53B When a person has increased care of a child

Certificates issued by family dispute resolution practitioners under the FL Act

The Registrar may seek evidence that reasonable action has been taken, has ceased, or has re-started. This may include verification by the other party, documentation from a family dispute resolution practitioner, or a certificate issued under section 60I of the FL Act.

For a shorter interim period to apply, there is no requirement for the parent with increased care to take action other than taking reasonable action to participate in family dispute resolution. Section 60I certificates are part of the family dispute resolution framework and may be issued by a practitioner to a person for various reasons based on the conduct and outcome of the family dispute resolution process.

In certain circumstance a certificate may indicate that the person with increased care took reasonable action to participate in family dispute resolution, and that it is no longer reasonable to continue to do so. On the other hand, a certificate could demonstrate that the person with increased care has not participated in family dispute resolution.

Where a certificate is presented as evidence, the Registrar will examine the details of the relevant certificate. A certificate will not always provide sufficient or conclusive evidence on its own to apply a shorter interim period. The Registrar will consider all the circumstances of the individual case to determine the duration of an interim period.

Act reference: FL Act section 60I Attending family dispute resolution before applying for Part VII order

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